A balancing test?

Lorne Malkiewich has served 30 years with the state Legislative Counsel Bureau, 18 years as director. The LCB drafts Nevada’s statutes and provides non-partisan audits, research and legal advice to the Nevada Legislature.

Mr. Malkiewich will retire before the start of the 2013 legislative session. But it appears he has left Nevada bureaucrats, who often bridle at the legal requirement that they “show their work” to the taxpayers on request, a little going-away present.

On Mr. Malkiewich’s behalf, attorney Brenda Erdoes submitted to the Legislative Commission — 12 legislators appointed to exercise policymaking and supervising authority over the LCB — and won approval Wednesday for a set of amendments to rules and policies of the bureau regarding access to public records.

Section 1 of the new policies states: “The Legislative Commission recognizes the Nevada Supreme Court decision Donrey of Nevada v. Bradshaw … (1990), has recognized a common law limitation of the provisions of the Nevada Public Records Act. This common law limitation requires an agency to balance the public interest in disclosure against the public interest served by nondisclosure to determine whether information is a confidential record. The Legislative Counsel Bureau shall deny any request for information if, on balance, the public interest in nondisclosure outweighs the public interest in disclosure. The request for the release of public information shall state the reason for the request so the legislative Counsel Bureau can weigh the public interest in disclosure.”

So Nevada’s public records law states all government documents are presumed to be public documents unless covered by a few specified exceptions — personnel records and the like — but now any member of the public seeking such documents from the LCB has to ask “Pretty please?” and further cite their reasons for seeking these documents, at which point the LCB will think about it?

Then, in the new rules just adopted, Mr. Malkiewich’s office will look with particular suspicion on any request for documents “which reflect the opinions, recommendations, advice or thought processes of employees to any decision making official making decisions.”

Barry Smith, executive director of the Nevada Press Association, responded quickly.

“My primary objection is to language in Section 1 … which attempts to adopt a ‘balancing test’ as a determining factor in whether records are disclosed,” Mr. Smith wrote in a Wednesday letter to Mr. Malkiewich.

“No such balancing test is contained in NRS 239” (the state public records law), “which underwent substantial and significant revision during the 2007 session of the Nevada Legislature. The Legislature had ample opportunity during hearings … in the 2007 session to consider and, if desired, adopt a balancing test. It did not.”

As for the 1990 Nevada Supreme Court case Donrey v. Bradshaw, “while commonly thought to have confirmed a balance test, in fact did no such thing — at least, not as far as giving governmental agencies the authority to deny public access to a record. In Donrey v. Bradshaw, the majority opinion discussed whether the court itself should apply a balancing test of public interest against rights of privacy. The opinion did not establish a balancing test, nor did it give authority to governmental agencies to adopt one. …

“There is no obligation on the part of the public to explain its interest in public documents,” Mr. Smith writes.

Mr. Malkiewich said Friday that “I believe the material for the most part was taken from the state personnel regulations. … I don’t believe that any of this is new language proposed by the Legislature.”

The 12 members of the Legislative Commission should take a closer look at this new set of rules, possibly with input from a few legal minds outside the LCB.